Bill Text: NY S07096 | 2009-2010 | General Assembly | Amended
Bill Title: Broadens scope of prevailing wage requirements and establishes criminal penalties for violations.
Spectrum: Partisan Bill (Democrat 11-0)
Status: (Engrossed - Dead) 2010-06-02 - referred to labor [S07096 Detail]
Download: New_York-2009-S07096-Amended.html
S T A T E O F N E W Y O R K
________________________________________________________________________
7096--A
I N S E N A T E
March 11, 2010
___________
Introduced by Sens. SCHNEIDERMAN, KRUEGER, STEWART-COUSINS -- read twice
and ordered printed, and when printed to be committed to the Committee
on Labor -- committee discharged, bill amended, ordered reprinted as
amended and recommitted to said committee
AN ACT to amend the labor law, in relation to prevailing wages for
service workers
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
1 Section 1. The article heading of article 9 of the labor law, as added
2 by chapter 777 of the laws of 1971, is amended to read as follows:
3 PREVAILING WAGE FOR [BUILDING] SERVICE EMPLOYEES
4 S 2. Subdivisions 1, 2, 3, 4, 6, 8, 9 and 10 of section 230 of the
5 labor law, subdivision 1 as amended and subdivision 9 as added by chap-
6 ter 542 of the laws of 1984, subdivisions 2, 3, 6 and 8 as added by
7 chapter 777 of the laws of 1971, subdivision 4 as amended by chapter 678
8 of the laws of 2007 and subdivision 10 as added by chapter 547 of the
9 laws of 1998, are amended and a new subdivision 15 is added to read as
10 follows:
11 1. "[Building service] SERVICE employee" or "employee" means any
12 person performing JANITORIAL, FOOD OR SECURITY SERVICE WORK FOR A
13 CONTRACTOR UNDER CONTRACT WITH A PUBLIC AGENCY WHICH IS IN EXCESS OF ONE
14 THOUSAND FIVE HUNDRED DOLLARS AND THE PRINCIPAL PURPOSE OF WHICH IS TO
15 FURNISH SERVICES THROUGH THE USE OF SERVICE EMPLOYEES, OR ANY OTHER
16 PERSON PERFORMING work in connection with the care or maintenance of an
17 existing building, or in connection with the transportation of office
18 furniture or equipment to or from such building, or in connection with
19 the transportation and delivery of fossil fuel to such building, for a
20 contractor under a contract with a public agency which is in excess of
21 one thousand five hundred dollars and the principal purpose of which is
22 to furnish services through the use of [building] service employees.
23 "[Building service] SERVICE employee" or "employee" includes, but is
24 not limited, to, watchman, guard, doorman, building cleaner, porter,
25 handyman, janitor, gardener, groundskeeper, stationary fireman, elevator
26 operator and starter, window cleaner, FOOD SERVICE WORKER, COOK, BAKER,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD16378-04-0
S. 7096--A 2
1 DISHWASHER, MEAT CUTTER, WAITER, DRIVER and occupations relating to the
2 collection of garbage or refuse, and to the transportation of office
3 furniture and equipment, and to the transportation and delivery of
4 fossil fuel but does not include clerical, sales, professional, techni-
5 cian and related occupations.
6 "[Building service] SERVICE employee" or "employee" also does not
7 include any employee to whom the provisions of articles eight and
8 [eight-a] EIGHT-A of this chapter are applicable.
9 2. "[Building service] SERVICE work" [or "service work"] means work
10 performed by a [building] service employee, but does not include work
11 performed for a contractor under a contract for the furnishing of
12 services by radio, telephone, telegraph or cable companies[; and any
13 contract for public utility services, including electric light and
14 power, water, steam and gas]. "SERVICE WORK" SHALL ALSO INCLUDE WORK
15 PERFORMED UNDER A CONTRACT FOR THE BENEFIT OF A PUBLIC AGENCY WITH ANY
16 THIRD PARTY PERSON OR ENTITY ACTING IN PLACE OF, ON BEHALF OF OR FOR THE
17 BENEFIT OF SUCH PUBLIC AGENCY PURSUANT TO ANY LEASE, PERMIT OR OTHER
18 AGREEMENT BETWEEN SUCH THIRD PARTY PERSON OR ENTITY AND THE PUBLIC AGEN-
19 CY.
20 3. "Public agency" means the state, any of its political subdivisions,
21 a public benefit corporation, a public authority, INCLUDING A PUBLIC
22 AUTHORITY PROVIDING PUBLIC UTILITY SERVICES, or commission or special
23 purpose district board appointed pursuant to law, [and] a board of
24 education, A BUSINESS IMPROVEMENT DISTRICT WITH MORE THAN ONE MILLION
25 DOLLARS PER YEAR IN TOTAL REVENUE, AND ANY PUBLIC UTILITY THAT DISTRIB-
26 UTES ELECTRIC LIGHT OR POWER, OR GAS OR STEAM SERVICES AT RETAIL RATES
27 REGULATED BY THE PUBLIC SERVICE COMMISSION PURSUANT TO A FRANCHISE
28 GRANTED UNDER THE PROVISIONS OF SECTION SIXTY-EIGHT OR EIGHTY-ONE OF THE
29 PUBLIC SERVICE LAW, AND ANY SUBSTANTIALLY-OWNED AFFILIATED ENTITY OF
30 SUCH PUBLIC UTILITY.
31 4. "Contractor" means any employer who employs employees to perform
32 [building] service work under a contract with a public agency and shall
33 include any of the contractor's subcontractors.
34 6. "Prevailing wage" means the wage determined by the fiscal officer
35 to be prevailing for the various classes of [building] service employees
36 in the locality. In no event shall the basic hourly cash rate of pay be
37 less than the statutory minimum wage established by article nineteen of
38 this chapter, or, in a city with a local law requiring a higher minimum
39 wage on city contract work, less than the minimum wage specified in such
40 local law.
41 8. "Fiscal officer" means the industrial commissioner, except for
42 [building] service work performed by or on behalf of a city, in which
43 case "fiscal officer" means the comptroller or other analogous officer
44 of such city.
45 9. "Fossil fuel" shall mean coal, petroleum products and fuel gases.
46 "Coal" shall include bituminous coal, anthracite coal and lignite. "Fuel
47 gases" shall include but not be limited to methane, natural gas, lique-
48 fied natural gas and manufactured fuel gases. "Petroleum products" shall
49 include all products refined or rerefined from synthetic or crude oil or
50 oil extracted from other sources, including natural gas liquids.
51 [Provided that nothing in this subdivision shall affect the exclusion
52 for public utility services set forth in subdivision two of this
53 section.]
54 10. "Substantially-owned affiliated entity" shall mean the parent
55 company of the PUBLIC UTILITY, contractor or subcontractor, any subsid-
56 iary of the PUBLIC UTILITY, contractor or subcontractor, or any entity
S. 7096--A 3
1 in which the parent of the PUBLIC UTILITY, contractor or subcontractor
2 owns more than fifty percent of the voting stock, or an entity in which
3 one or more of the top five shareholders of the PUBLIC UTILITY, contrac-
4 tor or subcontractor individually or collectively also owns a control-
5 ling share of the voting stock, or an entity which exhibits any other
6 indicia of control over the PUBLIC UTILITY, contractor or subcontractor
7 or over which the PUBLIC UTILITY, contractor or subcontractor exhibits
8 control, regardless of whether or not the controlling party or parties
9 have any identifiable or documented ownership interest. Such indicia
10 shall include: power or responsibility over employment decisions, access
11 to and/or use of the relevant entity's assets or equipment, power or
12 responsibility over contracts of the entity, responsibility for mainte-
13 nance or submission of certified payroll records, and influence over the
14 business decisions of the relevant entity.
15 15. "PERSON" SHALL MEAN A HUMAN BEING AND SHALL INCLUDE AN "ENTITY" AS
16 DEFINED IN THIS ARTICLE, INCLUDING, BUT NOT LIMITED TO A CONTRACTOR OR
17 SUBCONTRACTOR.
18 S 3. Subdivisions 1, 3, 4 and 5 of section 231 of the labor law,
19 subdivisions 1, 3 and 4 as added by chapter 777 of the laws of 1971 and
20 subdivision 5 as amended by chapter 678 of the laws of 2007, are amended
21 and a new subdivision 8 is added to read as follows:
22 1. Every contractor shall pay a service employee under a contract for
23 [building] service work a wage of not less than the prevailing wage in
24 the locality for the craft, trade or occupation of the service employee.
25 3. Each contract for [building] service work shall contain as part of
26 the specifications thereof a schedule of the wages required to be paid
27 to the various classes of service employees on such work, and each such
28 contract shall further contain a provision obligating the contractor to
29 pay each employee on such work not less than the wage specified for his
30 craft, trade or occupation in such schedule.
31 4. The public agency, or appropriate officer or agent thereof, whose
32 responsibility it is to prepare or direct the preparation of the plans
33 and specifications for a contract for [building] service work, shall
34 ascertain from such plans and specifications the classifications of
35 employees to be employed on such work and shall file a list of such
36 classifications with the fiscal officer, together with a statement of
37 the work to be performed. The fiscal officer shall determine the crafts,
38 trades and occupations required for such work and shall make a determi-
39 nation of the wages required to be paid in the locality for each such
40 craft, trade or occupation. A schedule of such wages shall be annexed to
41 and form a part of the specifications for the contract prior to the time
42 of the advertisement for bids on such contract and shall constitute the
43 schedule of wages referred to in subdivision three of this section.
44 5. Upon the award of a contract for [building] service work by a
45 public agency other than a city, the contracting public agency shall
46 immediately furnish to the commissioner: (a) the name and address of the
47 contractor to whom the contract was awarded; (b) the date when the
48 contract was awarded; and (c) the approximate consideration stipulated
49 for in the contract.
50 8. THE REQUIREMENTS OF THIS SECTION SHALL APPLY TO ANY PERSON OR ENTI-
51 TY THAT ENTERS INTO ANY LEASE, PERMIT OR OTHER AGREEMENT WITH A PUBLIC
52 AGENCY THAT INCLUDES THE PROVISION OF SERVICE WORK BY EMPLOYEES WHO
53 WOULD BE REQUIRED TO BE PAID SCHEDULED WAGES PURSUANT TO THIS SECTION IN
54 THE ABSENCE OF SUCH AGREEMENT. ANY THIRD PARTY PERSON OR ENTITY THAT
55 CONTRACTS FOR OR OTHERWISE ARRANGES FOR THE PAYMENT FOR OR PERFORMANCE
56 OF SERVICE WORK FOR THE BENEFIT OF A PUBLIC AGENCY PURSUANT TO ANY SUCH
S. 7096--A 4
1 AGREEMENT SHALL DO SO AS AN AGENT OF THE PUBLIC AGENCY. NO PUBLIC AGEN-
2 CY SHALL ENTER INTO ANY SUCH AGREEMENT WITH ANY PERSON OR ENTITY WITHOUT
3 (A) PREPARATION OF AN AGREEMENT BETWEEN THE PUBLIC AGENCY AND THE THIRD
4 PARTY PERSON OR ENTITY THAT CLEARLY DELINEATES THE RESPONSIBILITIES OF
5 EACH WITH RESPECT TO REPORTING, FILING AND RETENTION OF PAYROLLS AND
6 OTHER DOCUMENTS, AND ANY OTHER ACTIONS REQUIRED PURSUANT TO THIS ARTI-
7 CLE, AND (B) RECEIPT BY THE PUBLIC AGENCY OF A WRITTEN ACKNOWLEDGEMENT
8 FROM SUCH THIRD PARTY PERSON OR ENTITY THAT THE PERSON OR ENTITY AGREES
9 TO UNDERTAKE THOSE RESPONSIBILITIES AS THE AGENT OF THE PUBLIC AGENCY,
10 AND AFFIRMING SUCH PERSON OR ENTITY'S NONDELEGABLE OBLIGATION TO PAY NOT
11 LESS THAN THE WAGES SPECIFIED IN EACH APPLICABLE SCHEDULE. SUCH DOCU-
12 MENTS SHALL BE IN A FORM SATISFACTORY TO THE FISCAL OFFICER AND SHALL BE
13 SUBSCRIBED AND CONFIRMED AS REQUIRED BY SUCH OFFICER. SUCH DOCUMENTS
14 SHALL BE RETAINED AS PROVIDED IN SECTION TWO HUNDRED THIRTY-THREE OF
15 THIS ARTICLE, AND A COPY OF EACH SUCH DOCUMENT SHALL BE FILED BY THE
16 PUBLIC AGENCY WITH THE FISCAL OFFICER WITHIN TEN DAYS OF ITS EXECUTION.
17 NOTWITHSTANDING ANY SUCH AGREEMENT, NOTHING IN THIS SUBDIVISION SHALL BE
18 DEEMED TO RELIEVE THE PUBLIC AGENCY OF ITS RESPONSIBILITIES TO ENSURE
19 COMPLIANCE WITH THIS ARTICLE. ANY LEASE, PERMIT OR AGREEMENT MADE IN
20 CONTRAVENTION OF THIS SUBDIVISION SHALL BE VOID AS A MATTER OF PUBLIC
21 POLICY. THE FISCAL OFFICER MAY TAKE ALL ACTIONS NECESSARY TO ENSURE
22 COMPLIANCE WITH THE PROVISIONS OF THIS ARTICLE AGAINST THE PUBLIC AGEN-
23 CY, ANY THIRD PARTY ACTING IN PLACE OF, ON BEHALF OF OR FOR THE BENEFIT
24 OF SUCH PUBLIC AGENCY PURSUANT TO ANY LEASE, PERMIT OR OTHER AGREEMENT
25 BETWEEN SUCH THIRD PARTY PERSON OR ENTITY AND THE PUBLIC AGENCY, OR BOTH
26 THE PUBLIC AGENCY AND THIRD PARTY JOINTLY.
27 S 4. Subdivision 4 of section 230 of the labor law, as added by chap-
28 ter 777 of the laws of 1971, is amended to read as follows:
29 4. "Contractor" means any employer who employs employees to perform
30 [building] service work under a contract with a public agency, and shall
31 include any of his subcontractors.
32 S 5. Subdivision 5 of section 231 of the labor law, as added by chap-
33 ter 777 of the laws of 1971, is amended to read as follows:
34 5. Upon the award of a contract for [building] service work by a
35 public agency other than a city, the contracting public agency shall
36 immediately furnish to the industrial commissioner: (a) the name and
37 address of the contractor to whom the contract was awarded; (b) the date
38 when the contract was awarded; and (c) the approximate consideration
39 stipulated for in the contract.
40 S 6. Paragraphs a and c of subdivision 2 and subdivision 7 of section
41 235 of the labor law, paragraph a of subdivision 2 and subdivision 7 as
42 amended and paragraph c of subdivision 2 as added by chapter 547 of the
43 laws of 1998, are amended and subdivision 2 is amended by adding a new
44 paragraph g to read as follows:
45 a. At the start of such investigation the fiscal officer may notify
46 the financial officer of the public agency interested who shall, at the
47 direction of the fiscal officer, forthwith withhold from any payment due
48 to the contractor executing the contract sufficient money to safeguard
49 the rights of the service employees and to cover the civil penalty that
50 may be assessed as provided herein, or, if there are insufficient moneys
51 still due or earned to the contractor or subcontractor to safeguard the
52 rights of the service employees and to cover the civil penalty that may
53 be assessed as provided herein, the financial officer of another civil
54 division which has entered or subsequently enters into a [building]
55 service work contract with the contractor or subcontractor, who shall
56 withhold from any payment due the contractor or subcontractor executing
S. 7096--A 5
1 any [building] service work, sufficient moneys to safeguard the rights
2 of the service employees and to cover the civil penalty that may be
3 assessed as provided herein.
4 c. The notice of withholding shall provide that the fiscal officer
5 intends to instruct the financial officer, not less than ten days
6 following service of the notice by mail, to withhold sufficient moneys
7 to safeguard the rights of the service employees and to cover the civil
8 penalty that may be assessed as provided herein, from any payment due
9 the notified party under any [building] service work contract pending
10 final determination. The notice of withholding shall provide that within
11 thirty days following the date of the notice of withholding the notified
12 party may, contest the withholding on the basis that the notified party
13 is not a partner or one of the five largest shareholders of the subcon-
14 tractor or contractor, an officer of the contractor or subcontractor who
15 knowingly participated in the violation of this article, a substantial-
16 ly-owned affiliated entity or successor. If the notified party fails to
17 contest the notice of withholding, or if the fiscal officer, after
18 reviewing the information provided by the notified party in such
19 contest, determines that the notified party is a partner or one of the
20 five largest shareholders, a substantially-owned affiliated entity, an
21 officer of the contractor or subcontractor who knowingly participated in
22 the violation of this article, or a successor, the fiscal officer may
23 instruct the financial officer to immediately withhold sufficient moneys
24 to safeguard the rights of the service employees and to cover the civil
25 penalty that may be assessed as provided herein from any payment due the
26 notified party under any [building] service work contract pending the
27 final determination.
28 G. THE FISCAL OFFICER MAY REQUIRE ANY PERSON OR CORPORATION PERFORMING
29 SUCH PUBLIC WORK TO FILE WITH THE FISCAL OFFICER WITHIN TEN DAYS OF
30 RECEIPT OF SAID REQUEST, PAYROLL RECORDS, SWORN TO AS TO THEIR VALIDITY
31 AND ACCURACY, REQUESTED BY THE FISCAL OFFICER, FOR SAID SERVICE WORK OR
32 FOR ANY PUBLIC OR PRIVATE WORK PERFORMED BY SAID PERSON OR CORPORATION
33 DURING THE SAME PERIOD OF TIME AS SAID SERVICE WORK. IN THE EVENT SAID
34 PERSON OR CORPORATION FAILS TO PROVIDE THE REQUESTED INFORMATION WITHIN
35 THE ALLOTTED TEN DAYS, THE FISCAL OFFICER SHALL, WITHIN FIFTEEN DAYS,
36 ORDER THE FINANCIAL OFFICER OF THE PUBLIC AGENCY TO IMMEDIATELY WITHHOLD
37 FROM PAYMENT TO SAID PERSON OR CORPORATION UP TO TWENTY-FIVE PERCENT OF
38 THE AMOUNT, NOT TO EXCEED FIVE HUNDRED THOUSAND DOLLARS, TO BE PAID TO
39 SAID PERSON OR CORPORATION UNDER THE TERMS OF THE CONTRACT PURSUANT TO
40 WHICH SAID SERVICE WORK IS BEING PERFORMED. SAID AMOUNT WITHHELD SHALL
41 BE IMMEDIATELY RELEASED UPON RECEIPT BY THE PUBLIC AGENCY OF A NOTICE
42 FROM THE FISCAL OFFICER INDICATING THAT THE REQUEST FOR RECORDS HAD BEEN
43 SATISFIED.
44 7. When, pursuant to the provisions of this section, two final orders
45 have been entered against a contractor, subcontractor, successor, or any
46 substantially-owned affiliated entity of the contractor or subcontrac-
47 tor, any of the partners if the contractor or subcontractor is a part-
48 nership, any of the five largest shareholders of the contractor or
49 subcontractor, any officer of the contractor or subcontractor who know-
50 ingly participated in the violation of this article within any consec-
51 utive six-year period determining that such contractor or subcontractor
52 and/or its successor, substantially-owned affiliated entity of the
53 contractor or subcontractor, any of the partners or any of the five
54 largest shareholders of the contractor or subcontractor, any officer of
55 the contractor or subcontractor who knowingly participated in the
56 violation of this article has willfully failed to pay the prevailing
S. 7096--A 6
1 wages in accordance with the provisions of this article, whether such
2 failures were concurrent or consecutive and whether or not such final
3 determinations concerning separate public [building] service WORK
4 contracts are rendered simultaneously, such contractor, subcontractor,
5 successor, and if the contractor, subcontractor, successor, or any
6 substantially-owned affiliated entity of the contractor or subcontrac-
7 tor, any of the partners if the contractor or subcontractor is a part-
8 nership, or any of the five largest shareholders of the contractor or
9 subcontractor, any officer of the contractor or subcontractor who know-
10 ingly participated in the violation of this article, or any successor is
11 a corporation, any officer of such corporation who knowingly partic-
12 ipated in such failure, shall be ineligible to submit a bid on or be
13 awarded any public [building] service work for a period of five years
14 from the date of the second order, provided, however, that where any
15 such final order involves the falsification of payroll records or the
16 kickback of wages, the contractor, subcontractor, successor, substan-
17 tially-owned affiliated entity of the contractor or subcontractor, any
18 partner if the contractor or subcontractor is a partnership or any of
19 the five largest shareholders of the contractor or subcontractor, any
20 officer of the contractor or subcontractor who knowingly participated in
21 the violation of this article shall be ineligible to submit a bid on or
22 be awarded any public [building] service WORK contract or subcontract
23 with the state, any municipal corporation or public body for a period of
24 five years from the date of the first final order. Nothing in this
25 subdivision shall be construed as affecting any provision of any other
26 law or regulation relating to the awarding of public contracts.
27 S 7. Subdivision 2 of section 237 of the labor law, as amended by
28 chapter 698 of the laws of 1988, is amended to read as follows:
29 2. A. Before payment is made by or on behalf of a public agency of any
30 sums due on account of a contract for service work, it shall be the duty
31 of the comptroller of the state or the financial officer of such public
32 agency or other officer or person charged with the custody and disburse-
33 ment of the state or corporate funds applicable to the contract under
34 and pursuant to which payment is made, to require the contractor to file
35 a statement in writing in form satisfactory to such officer certifying
36 to the amounts then due and owing from such contractor filing such
37 statement to or on behalf of any and all service employees for daily or
38 weekly wages on account of labor performed upon the work under the
39 contract, setting forth therein the names of the persons whose wages are
40 unpaid and the amount due to or on behalf of each respectively, which
41 statement so to be filed shall be verified by the oath of the contractor
42 that he or she has read such statement subscribed by him or her and
43 knows the contents thereof, and that the same is true of his or her own
44 knowledge. THE CONTRACTOR SHALL FILE THESE PAYROLL RECORDS VERIFIED
45 UNDER OATH WITHIN NINETY DAYS AFTER ANY LABOR IS PERFORMED UPON THE WORK
46 UNDER CONTRACT, OR SUCH OTHER TIME AS THE FISCAL OFFICER MAY AUTHORIZE.
47 ANY PERSON WHO WILLFULLY FAILS TO FILE SUCH PAYROLL RECORDS WITH THE
48 PUBLIC AGENCY SHALL BE GUILTY OF A CLASS E FELONY.
49 B. EACH PUBLIC AGENCY SHALL DESIGNATE IN WRITING AN INDIVIDUAL
50 EMPLOYED BY SUCH DEPARTMENT RESPONSIBLE FOR THE RECEIPT, COLLECTION AND
51 REVIEW FOR FACIAL VALIDITY OF A CONTRACTOR'S CERTIFIED PAYROLL STATE-
52 MENT, AS SET FORTH IN THIS SUBDIVISION, BEFORE PAYMENT IS MADE. SAID
53 DESIGNATION SHALL BE FILED WITH THE FISCAL OFFICER AND POSTED IN A
54 CONSPICUOUS LOCATION AT THE WORK SITE. IF THE DESIGNATED INDIVIDUAL
55 CANNOT PERFORM THE RECEIPT, COLLECTION AND REVIEW OF CERTIFIED PAYROLLS
56 DUTIES AS INDICATED ABOVE, FOR ANY REASON, INCLUDING BUT NOT LIMITED TO
S. 7096--A 7
1 REASSIGNMENT, PROMOTION OR SEPARATION FROM EMPLOYMENT, THE PUBLIC AGENCY
2 MUST IMMEDIATELY DESIGNATE ANOTHER INDIVIDUAL EMPLOYED BY SUCH AGENCY TO
3 FULFILL SUCH RESPONSIBILITIES. IN THE EVENT THAT A PUBLIC AGENCY FAILS
4 TO NAME AN INDIVIDUAL RESPONSIBLE FOR THE RECEIPT, COLLECTION AND REVIEW
5 FOR FACIAL VALIDITY OF CONTRACTORS' CERTIFIED PAYROLLS, THEN THE INDI-
6 VIDUAL SO RESPONSIBLE SHALL BE THE INDIVIDUAL WHO IS THE CHIEF
7 POLICY-MAKING OFFICER OF SUCH PUBLIC AGENCY.
8 S 8. Subdivision 2 of section 238 of the labor law, as added by chap-
9 ter 777 of the laws of 1971, is amended to read as follows:
10 2. A. When a contract for service work contains as part thereof a
11 schedule of wages as provided for in this article, any [contractor]
12 PERSON who, after entering into such contract[, and any subcontractor of
13 such contractor who] WILLFULLY fails to pay to any service employee the
14 wages stipulated in such wage schedule [is guilty of a misdemeanor and
15 upon conviction shall be punished for a first offense by a fine of five
16 hundred dollars or by imprisonment for not more than thirty days or by
17 both fine and imprisonment; for a second offense by a fine of one thou-
18 sand dollars], and [in]:
19 (I) SUCH FAILURE RESULTS IN UNDERPAYMENTS WHICH IN THE AGGREGATE
20 AMOUNT TO ALL WORKERS EMPLOYED BY THE CONTRACTOR OR SUBCONTRACTOR
21 RESULTS IN AN AMOUNT LESS THAN TWENTY-FIVE THOUSAND DOLLARS, THE
22 CONTRACTOR OR SUBCONTRACTOR SHALL BE GUILTY OF A CLASS A MISDEMEANOR;
23 (II) SUCH FAILURE RESULTS IN UNDERPAYMENTS, WHICH IN THE AGGREGATE
24 AMOUNT TO ALL WORKERS EMPLOYED BY SUCH CONTRACTOR OR SUBCONTRACTOR,
25 RESULTS IN AN AMOUNT GREATER THAN TWENTY-FIVE THOUSAND DOLLARS, THE
26 CONTRACTOR OR SUBCONTRACTOR SHALL BE GUILTY OF A CLASS E FELONY;
27 (III) SUCH FAILURE RESULTS IN UNDERPAYMENTS, WHICH IN THE AGGREGATE
28 AMOUNT TO ALL WORKERS EMPLOYED BY SUCH CONTRACTOR OR SUBCONTRACTOR,
29 RESULTS IN AN AMOUNT GREATER THAN ONE HUNDRED THOUSAND DOLLARS, THE
30 CONTRACTOR OR SUBCONTRACTOR SHALL BE GUILTY OF A CLASS D FELONY; OR
31 (IV) SUCH FAILURE RESULTS IN UNDERPAYMENTS, WHICH IN THE AGGREGATE
32 AMOUNT TO ALL WORKERS EMPLOYED BY SUCH CONTRACTOR OR SUBCONTRACTOR,
33 RESULTS IN AN AMOUNT GREATER THAN FIVE HUNDRED THOUSAND DOLLARS, THE
34 CONTRACTOR OR SUBCONTRACTOR SHALL BE GUILTY OF A CLASS C FELONY.
35 B. IN addition thereto the contract on which the violation has
36 occurred shall be forfeited; and no such contractor shall be entitled to
37 receive any sum, nor shall any officer, agent or employee of the
38 contracting public agency pay any such sum or authorize its payment from
39 the funds under his charge or control to such contractor for work done
40 upon the contract on which the contractor has been convicted of a second
41 offense. If the contractor or subcontractor is a corporation, any offi-
42 cer of such corporation who knowingly permits the corporation to fail to
43 make such payment shall also be guilty of [a misdemeanor] THE OFFENSE
44 DEFINED IN PARAGRAPH A OF THIS SUBDIVISION and the criminal and civil
45 penalties [herein] OF THIS SUBDIVISION shall attach to such officer upon
46 conviction.
47 S 9. Severability. If any clause, sentence, paragraph, section or part
48 of this act be adjudged by any court of competent jurisdiction to be
49 invalid and after exhaustion of all further judicial review, the judg-
50 ment shall not affect, impair or invalidate the remainder thereof, but
51 shall be confined in its operation to the clause, sentence, paragraph,
52 section or part of this act directly involved in the controversy in
53 which the judgment shall have been rendered.
54 S 10. This act shall take effect on the ninetieth day after it shall
55 have become a law, and shall apply to all contracts or other agreements
56 entered into, renewed, or extended on or after such date; provided,
S. 7096--A 8
1 however: (a) the amendments to subdivision 4 of section 230 of the
2 labor law made by section two of this act shall be subject to the expi-
3 ration and reversion of such subdivision pursuant to section 5 of chap-
4 ter 678 of the laws of 2007, as amended, when upon such date the
5 provisions of section four of this act shall take effect; and
6 (b) the amendments to subdivision 5 of section 231 of the labor law
7 made by section three of this act shall be subject to the expiration and
8 reversion of such subdivision pursuant to section 5 of chapter 678 of
9 the laws of 2007, as amended, when upon such date the provisions of
10 section five of this act shall take effect.
